Nicholas v. McIntire — 48 N.Y. St. Rep. 314

Majority

p. 314

Henry Nicholas, Resp’t, v. John E. McIntire et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1892.)

Headnote

1. Lease—Consideration for promise to emplot.

A lease to A. by If. furnishee a good consideration for the promise of M. to employ If.

2. Guarantee— Construction.

Defendants guaranteed A.’s lease “to the amount of five hundred and sixty dollars, or until January the first, 1891.” In such lease A. covenanted to make certain repairs, which he failed to do. Held, that defendants were liable to pay damages for the breach of A.’s covenant in regard to repairs.

3. Same—Parol evidence admissible.

In such case, if the clause quoted created any ambiguity, it was proper to resort to paroi evidence to relieve the guarantee of such ambiguity.

Appeal from a judgment entered in the cleric’s office of the county of Erie, on the 21st day of December, 1891, upon the report of a referee.

M. Fillmore Brown, for app’lt; Edward T. Durand, for resp’t.

The claim of the plaintiff for damages for breach of the contract to furnish him employment was established by the evidence.

The lease to Armstrong furnished a good consideration for the promise of defendants to employ the plaintiff. The breach of the agreement on the part of the defendants and the damages sustained were proven.

The terms of defendants’ guarantee that Armstrong would perform the covenants of the lease are sufficiently broad to cover the payment of the rent up till January 1, 1891, and also any

p. 315

damages which might follow by the failure of Armstrong to leave the premises is as good condition as they were when taken.

The rent Armstrong paid, but he failed to perform the covenant as to repairs. If the words appended to the guarantee, to wit: “To the amount of five hundred, and sixty dollars, or until January the first, 1891,” are to be construed as limiting the defendant’s liability for the payment of rent that should accrue by the first of January, 1891, it did not relieve them from their liability to pay damages for the breach of Armstrong’s covenant in regard to repairs.

The paroi evidence shows that the defendants agreed to guarantee that Armstrong should perform the last mentioned covenant, and jf the clause quoted created any ambiguity it was proper to resort to paroi evidence to relieve the guarantee of such ambiguity. Dodge v. Zimmer, 110 N. Y., 43 : 16 St. Rep., 657 .

The report of the referee is sustained by the evidence, and we find no reason for a reversal of the judgment.

The j udgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.